By Margo Kirchner

​Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held.

Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W.

Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds.

In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year.

The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence.

Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication.

When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.”

Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired.

Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible.

Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.”
​
On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help.

By Margo Kirchner

​Incarcerated people cannot be forcibly medicated unless they are a danger to themselves or others – just being too incompetent to refuse the medication is not enough to justify its administration, says the Wisconsin Supreme Court.

The court recently held that a statute permitting administration of medication upon a finding of mere incompetence to refuse was unconstitutional.

Justice Annette Kingsland Ziegler wrote for the court, joined by Justices Ann Walsh Bradley, Daniel Kelly, and Rebecca Dallet.

In 2005, C.S. was convicted of mayhem and sentenced to 10 years of imprisonment plus extended supervision. C.S. suffers from schizophrenia, and during his incarceration in 2012 Winnebago County petitioned to involuntarily commit and medicate him.

Involuntary commitment is a separate matter from involuntary medication. Those who are involuntarily committed, whether in prison or not, have a general right to refuse unwanted medication and treatment.

The Winnebago County Circuit Court committed C.S. and ordered involuntary medication after finding that C.S. was incompetent to refuse it himself.

In prior litigation C.S. unsuccessfully challenged his involuntary commitment. The recent case instead challenged the involuntary medication orders.

Those orders were based on findings that C.S. was incapable of understanding his condition and could not make an informed choice about medication. At no point in the proceedings did the court determine that C.S. was dangerous.

C.S. argued that the statute allowing medication of an incarcerated person was unconstitutional because, unlike the law governing those not in prison, it did not require the judge to find that the person is a danger to himself or others.

Winnebago County argued in response that it had an interest in the care of mentally ill and incompetent inmates, which justified the statute.

By Gretchen Schuldt

​State Supreme Court candidate Jill Karofsky won in most of the North Shore suburbs of Milwaukee County in Tuesday's primary election, while incumbent Daniel Kelly did better in the southern suburbs.

Karofsky, with 47,432 votes, was the top Milwaukee County finisher in the Feb. 18 primary. Incumbent Daniel Kelly finished second, with 44,088 votes, and Ed Fallone finished third, with 25,963 votes. Statewide,  Kelly finished first with 352,855 votes, Karofsky got 261,723, and Fallone received 89,181.

Karofsky and Kelly will compete in the April 7 general election. 

In Milwaukee County Karofsky won in Bayside, Brown Deer, Fox Point, Glendale, Milwaukee, St. Francis, Shorewood, and Whitefish Bay. Kelly won in Cudahy, Franklin, Greendale, Greenfield, Hales Corners, Oak Creek, River Hills, South Milwaukee, Wauwatosa, West Allis, and West Milwaukee.

Karofsky, a Dane County circuit judge, and Fallone, a Marquette University law professor, are considered more liberal than Kelly, who was appointed by former Gov. Scott Walker and is a member of the conservative Federalist Society.

Kelly won in some communities because Karofsky and Fallone split the more liberal vote. All other things being equal, if Fallone voters back Karofsky in the general election, she will pick up Cudahy, River Hills, South Milwaukee, Wauwatosa, and West Milwaukee, all of which went for Kelly in the primary. She also would pick up an additional 96 wards in the city of Milwaukee. 

Statewide, Karofsky would need to pick up all of Fallone's votes, plus 1,952 more to unseat Kelly.

Milwaukee County primary voter turnout was highest in Shorewood, at 34%, and lowest in West Milwaukee, at 18%. 

By Margo Kirchner​

The Wisconsin Supreme Court said in two recent opinions that criminal defendants must meet the same standards as lawyers when appealing their cases if their actual lawyers abandon them before the appeal is filed.
 
That means incarcerated people fighting on their own behalf must meet the same deadlines and follow the same rules as lawyers even without access to the same resources, such as law books, paper, and online information.
 
In each of the two cases, the defendant told counsel he wanted to appeal, but counsel failed to file a required notice of intent to pursue postconviction relief, resulting in the loss of appeal rights.
 
Such a failure constitutes ineffective assistance of counsel. But in each case the Court held the defendant responsible for errors when acting on his own to restart his appeal.
 
Justice Rebecca Grassl Bradley joined with Justices Ann Walsh Bradley and Rebecca Dallet in strong dissents in both cases.

​State v. Pope
 
In the first case, after four days of trial, a jury in Milwaukee County Circuit Court convicted Robert James Pope of first-degree intentional homicide as a party to the crime. In early July 1996, the court sentenced Pope to life imprisonment without parole.
 
Immediately after sentencing, Pope and his attorney, Michael Backes, signed a form indicating that Pope intended to pursue postconviction relief and that counsel would file a formal notice of the same within 20 days. Filing the formal notice sets in motion preparation of the trial transcript and appointment of appellate counsel. But Backes never filed the notice, and Pope’s direct appeal rights expired.
 
Pope and his mother tried repeatedly, without success, to reach Backes by phone to ask about the appeal.
 
About a year later, in August 1997, Pope contacted the State Public Defender’s Office to inquire about his appeal. The SPD told Pope there was no appeal, the office had no idea why the formal notice was never filed, and Pope could ask the court to extend the time for filing the notice.

By Margo Kirchner

​Overturning 14 years of case law, the Wisconsin Supreme Court recently expanded law enforcement’s right to use single-person showups rather than multi-person lineups when seeking identification of suspects.
 
The court ruled that a criminal defendant bears an initial burden of demonstrating that the procedure was impermissibly suggestive.
 
The court also criticized the use of social science in the law.
 
Social science, Chief Justice Patience Drake Roggensack wrote for the court, “has been used by courts as an excuse to justify disturbing decisions” such as Plessy v. Ferguson, which upheld racial segregation. At heart, though, she wrote, “[s]ocial science cannot change the original meaning of the Wisconsin Constitution.”
 
Show-ups have long been controversial. The U.S. Supreme Court, while declining to ban the practice outright, acknowledged in 1967 that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."
 
Since 2005, the Wisconsin Supreme Court had placed an initial burden on the prosecution to establish that the showup was necessary. If the state failed to show necessity, the showup evidence was excluded.
 
The Supreme Court adopted the necessity requirement in State v. Dubose, finding that the state constitution provided more protection than the U.S. Constitution did when it came to identifications. Under the U.S. Constitution, evidence of showups can be barred from trial as a violation of due process when a defendant shows that the identification procedure was unnecessarily suggestive and the prosecution fails to establish that the identification was nevertheless reliable.
 
To determine reliability, a court considers factors such as the witness’ opportunity to view the suspect at the time of the crime, the witness’ degree of attention, accuracy of the witness’ description of the suspect, the level of certainty demonstrated by the witness at the time of identification, and the passage of time between the crime and the identification.

This month’s Roberson case returned Wisconsin to the federal test by overruling Dubose.
 
Roggensack, in her decision, opined that Dubose was “unsound in principle as it was based on misunderstanding the United States Supreme Court’s decisions in regard to out-of-court identifications and on topical social science.” 

By Gretchen Schuldt 

A defendant has the right to present a case at trial even if a judge thinks there is enough evidence to decide without it, the State Supreme Court ruled last week.

“We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial,” Justice Daniel Kelly wrote in a 4-2 decision.

Chief Justice Patience D. Roggensack and Justice Annette Kingsland Ziegler dissented, saying that Milwaukee County Circuit Judge Christopher Foley committed only a “harmless error” when he did not allow Mr. K a chance to present a case to contest the state's contention that he was an unfit parent.

Justice Rebecca Dallet did not participate in the case.

Mr. K testified under direct examination by the district attorney’s office and under cross examination by his own lawyer, Roggensack wrote. There is not a reasonable probability that the outcome of the case would have been different if Mr. K had been allowed to put on his own case, she said.

The court’s ruling reverses both Foley and District 1 Court of Appeals Judge Timothy G. Dugan, who upheld Foley’s decision.

By Margo Kirchner

​​An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
 
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
 
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
 
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
 
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
 
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16.  The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
 
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
 
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
 
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.

By Margo Kirchner
​
After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
 
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
 
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.”  Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
 
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
 
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
 
The 2013 petition sought funding of the pilot project by the Supreme Court.
 
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
 
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.

By Margo Kirchner

​The Wisconsin Supreme Court last week approved felony charges against an adult for conduct allegedly committed when he was eight or nine years old – too young to be accused of juvenile delinquency.
 
In likely one of his last opinions before his term ends, Justice Michael J. Gableman wrote that a defendant’s age at the time he is charged, not his age at the time of the underlying conduct, determines how charges can be brought.
 
Justice Ann Walsh Bradley, in a concurring opinion, disagreed with Gableman’s reasoning. She said it was “absurd to conclude the legislature intended that criminal liability can attach for acts engaged in by children ages zero-ten. The majority’s conclusion to the contrary defies the purpose and structure of our statutes, as well as the rationale of prior case law.”
 
As noted by the Court, misconduct of a child under 10 years old generally is treated as a case of a juvenile in need of protection or services (JIPS), misconduct of a child aged 10 through 16 generally is addressed as a matter of juvenile delinquency, and misconduct of someone 17 or older is charged in adult court. Prior case law allowed for the charging of some JIPS-age conduct as juvenile delinquency, and statutes delineate the process for moving cases between juvenile court and adult court.
 
But until Friday the law did not clearly provide that conduct committed when a person was of JIPS age could be prosecuted years later in adult criminal court.

By Gretchen Schuldt

Thirty-six circuit court judges from 18 Wisconsin counties are together publicly supporting a proposal to increase pay for appointed defense lawyers. 

"As trial judges, we experience, on a daily basis, the impact that the underfunding of indigent criminal defense has on the quality and integrity of our criminal justice system," Milwaukee County Circuit Judge Glenn H. Yamahiro wrote to the State Supreme Court. Yamahiro was the main author of the letter and was joined by the author judges.

"These impacts often impede our ability to function effectively and efficiently. We have observed a decline in the quality of representation provided to indigent defendants. Many experienced lawyers have discontinued accepting public defender appointments out of economic necessity. As a result we face an increasing number of inexperienced or underqualified lawyers representing indigent defendants in serious criminal matters."

Yamahiro and the 35 other judges were commenting on a petition pending before the Supreme Court that seeks to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by State Public Defender's Office (SPD) to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.

"It is imperative that our Supreme Court exercise leadership to address the Constitutional Crisis...because the executive and legislative branches of government have failed to address this problem...over the past 40 years," he said.